° “e mater. ~ Dec tei pPrrn dong 74 The Evolution of Natural Law Fuller (1969, 33-42, 106, 145-151) 33-42 THE MORALITY THAT MAKES LAW POSSIBLE IA] low which 0 man cannot obey, nor act according to fs void and no law: and it impossible to obey contradiction or act according to them. ~ Vaughan, CJ. in Thomas v. Sorrell, 1677 te is desired that our learned Lowyers would answer these ensuing queries ... whether ever the Commonwealth, when they chose the Partiament, gave them a lawless unlimited power, and at their pleasure to walk contrary to their own laws and ordinances hefore they have repealed them? — Lilburne, England's Birth-Right Justified, 1645 “This chapter will begin with a fairly lengthy allegory. ft concerns the unhappy reign of 2 monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Rex. EIGHT WAYS TO FAIL TO MAKE LAW Rex came to the throne filled with the zeal of a reformer. He considered that the greatest fhilure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Rex was resolved to remedy all his and to make his name in history as a great lawgiver. fe was his unhappy fate to fail in this ambitior. Indeed, he failed spectacularly, since not only did he not succeed in introducing ‘ons, but he never even succeeded in creating any aw at all, good or the needed bad, Gy His fist ofcial act was, however, dramatic and propitivus. Since he needed a clean “state on which to write, he announced to his subjects the immediate repeal of all existing aw, of whatever kind. He then set about drafting a new code. Unfortunately, trained as a lonely prince, his education had been very defective. In particular he found himself incapable of making even the simplest generalizations. Though not lacking in confidence when it came to deciding specific controversies, the effort to give articulate reasons for any conclusion strained his capacities to the breaking point Becoming aware of his imitations, Rex gave up the project of a code and announced to his subjects that henceforth he would act as a judge in any disputes that might arise among them. In this way under the stimulus of a variety of cases he hoped that his latent powers of generalization might and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code. Unfortunately the defects in his education were more deep-seated than he had supposed. The venture ‘led completely. After he had handed down literally hundreds of decisions neither he nor his subjects could detect in those decisions any pattern whatsoever. Such tentatives toward generalization a1 were to be found in his opinions only compounded the confusion, for they gave false leads to his subjects and threw his own meager powers of judgment off balance in the decision of later cases. ‘After this fiasco Rex realized t was necessary to cake a fresh start. His first move was to subscribe to a course of lessons in generalization. Wath his intellectual powers thusThe Evolution of Natural Law 75 fortified, he resumed the project of a code and, after ‘many hours of solitary labor, tached le ae2 Bly lengthy document. He was sl noc conSdent owner ache nad amecome is previous defects. According, heameuncedeotie nee Mit all the more incense, therefore, when his code became available and it was decree oat was ty a maserpece of obec, Leg exper eae condensers wes tt ge reer nat coud be endorrocd cere sn ordinary citizen or by a trained kwyer. became general and soon a picket76 The Evolution of Natural Law everything he tied to do for tem. Fie den to their carping. He instructed the same tine to stfen drastically @VSrY ce rea no an impossibility, it should be trised to make compliance possible. I sumed out that to secomplish this result every Provision in the code had to be subseandally rewritten “The final resutt was, however, & “riumph of deatsmanship. was Cleats consistent with However, before the effective date for the new code had arrived, it was discovered i thay so much time had been spent I6 vroccessive revisions of Rex's original draft, that ; the substance of the code had been seriously overtaken by events. Ever since Rex uzumed the throne thers had been @ suspension of prdinary legal processes and this ad brought about important economic rid institutional changes within che country. ‘Accommodation to these alte! ‘ed conditions required many changes of substance in tsa dally stream of amendments. Again popular discontent mounted: 2” anonymous Cpe Arner? “ ae . res a eal wn peg a on ges ey aye ee fan Within a short time this source of disconcent began to cure fself as the pace of mendment gradually stackened, Before his had occurred to any noticeable degree. however, Rex announced an im decision. Reflecting on the misadventures of Nor eget nm : experts. He accordingly declared he was reassuming the judicial power in his own person. In this way he could irecty control the application of che neve ‘code and insure re ee He bag omens SN i « ‘As the king proceeded with this task, it seemed to bring 1 2 belated blossoming his Jong dormant powers of eneraizadion. His opinions began. indeed, to reveal? confident =! sore ost exuberame virtuosity as he ty “Tsuinguished his owm previous Gecisionss a hn noeThe Evolution of Natural Law 77 “This hope was, however, soon shattered. As the bound volumes of Rex's Judgments became available and were subjected to closer study. his subjects were appalled to Giscover that there existed no discernible relation between those judgments and the cade they purported to apply. Insofar as it found expression in the actual disposition of ceneroversies, che new code might just as well not have existed at all Yet in virtually every one of his decisions Rex declared and redeclared the code to be the basic law of his kingdom. Leading citizens began to hold private meetings to discuss what measures, short of pen revo could be taken to get the King aay from the bench and back onthe done While these discussions were going on Rex suddenly died, old before his time and deeply disillusioned with his subjects. The first act of his successor. Rex, was to announce that he was taking the powers of government away from the lawyers and placing them in the hands of psychiatrists and Eperts in public reasons. This way, he explained, people could be made haPPY without rules. THE CONSEQUENCES OF FAILURE Rex's bungling career as legislator and judge illustrates that the attempt to creat® and maintain a system of legal rules may miscarry in at least eight ways: there are in this enterprise, if ou will, eight distinct routes to disaster. The first and most obvious lies ina failure to achieve rules at all,so that every issue must be decided on an ad hoc basis, “The other routes are: (2) fallure to publicize or atleast to make available to che affected pargy, the rules he is expected to observe: (3) the abuse of retroactive legislation, which fot only cannot itself guide action, but undercuts the integricy of rules prospective lect since i puts them under the threat of retrospective change: (4) a fallre co make voles understandable; (5) the enactment of contradictory rules or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes tn the rules that the subject cannot orient his action by them; and, finaly () 2 failure of congruence between the rules 25 announced and their actual administration ‘Atotl lure in any one of these eight directions does not simply resule ina bad system of law it results in something that is not properly called a legal system at all, except perhaps inthe Pickwickian sense in which a void contract can sil be said to Be one kind of conerace. Certainly there can be no rational ground for asserting that a man can have 2 moral obligation to obey a legal rule that does not exist, or is Kept secret from him, ‘or that came into existence only after he had acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute. kinay not be impassible for a man to obey a rule chatis disregarded by those charged with its administration, but at some point obediencs becomes futile 2 futile in fact, as cascinga vote that will never be counted. As the sociologist Simmel has observed, there is a kind of reciprocity between government and the citizen with respect to the observance of rules. Government says to the citizen in effect. “These are the rules we expect you to follow. K you follow them. you have our assurance that they are the rules that will be applied to your conduct” When this bond of reciprocity is finally and completely ruptured by government, nothing is left on which to ground the citizen's duty to observe the rules.